Browning v. Dorton

ELLISON, J. This action is brought by plaintiffs as partners to recover a commission for having brought about the sale of defendant’s farm. Plaintiffs had judgment in the justice’s court, and again in the circuit court on a trial without the aid of a jury. The statement filed before the justice was in the name of “A. L. Browning & Co.,” without giving the names of the partners. It was amended in the circuit court by supplying or adding those names. The amendment was properly allowed. But the record does not affirmatively show permission to amend. The case was tried as though the amendment was in fact made. And defendant treated it as [250] made, for by his motion for new trial he assigns that fact as one of the errors committed. In our opinion he has no just ground of complaint. But it is earnestly insisted that there was no evidence to sustain the finding of the trial court. We think that if we apply the rule that plaintiffs, on appeal, are entitled to every reasonable inference to be drawn from the evidence, and circumstances shown in evidence, the finding is sufficiently supported. But aside from that consideration, defendant himself granted the sufficiency of the evidence by not asking a demurrer thereto and by asking and having given each of his instructions submitting the cause to the court as a jury. When that is done, he cannot complain on appeal on the ground of there being no evidence to justify a finding against him. [Dunlap v. Griffith, 146 Mo. 283, 289; Berkson v. Railway Co., 144 Mo. 211, 220; Gayle v. Missouri Car Co., 177 Mo. 427, 449.] Defendant asked several instructions and they were all given. Plaintiffs did not ask any. The views above expressed dispose of the principal contentions made against the judgment. An examination of the entire record fails to disclose any error justifying our interference with the judgment, and it is accordingly affirmed. All concur.